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Bail essentials

Bail is a release on conditions

After your arrest and at or immediately after your initial appearance, the court must set bail.

“Bail” is the defendant’s release on conditions. The conditions of your release may include the posting of collateral and the promise to obey court-ordered restrictions on your liberty.

Importance of your release to you and your criminal defense attorney

In the early stages of your case, a principal goal of your criminal defense attorney is to get you out of jail. Your attorney’s success in bailing you out means that you regain your liberty. Furthermore, your release will facilitate your attorney’s work and improve your attorney’s chances of obtaining a successful resolution of the case.

When you are incarcerated, you lose leverage in plea bargaining, especially if the sentence you are offered approaches the time you have already served.

Furthermore, when you are incarcerated it is difficult for your attorney to consult with you and represent you effectively:

  • Your attorney will expend considerable time in traveling to the jail and awaiting your delivery to an interview room.
  • The rooms in many jails lack privacy. The conference tables may sit side-by-side, enabling other inmates and lawyers to overhear your conversations.
  • The jailhouse is an awkward place in which to review documents and other physical evidence, especially audio and video tapes. But often your attorney will have no choice but to review these materials in the jailhouse or not at all.
  • You will not have free access to the phone to call your lawyer whenever you need to.
  • The likelihood of an informant repeating your words increases enormously in a jail setting. After all, the other inmates also want out, and many realize that the most effective form of self-help is to turn state’s evidence, especially in a serious or high-profile case.

In contrast, when you are free on bail, you can assist your criminal defense lawyer in trial preparation. You can visit the scene with your lawyer and help your lawyer find witnesses.

Stationhouse bail

In some locales, if you are arrested on a minor offense, the arresting officer may have discretion to set a minimal bail and release you from the stationhouse. However, there is no right to such “stationhouse” bail. In most cases, the decision to set bail is made at the court, not the stationhouse.

Bail bond agencies

In some circumstances, your criminal defense attorney might see if a licensed bonding company will post a cash bail for you upon payment of a fee.

The bonding company becomes the suretor on the bail bond. Bonding companies usually are conversant with the system, and once paid, can obtain your release rather quickly.

However, bail bond agencies hold several risks. If you deposit your own money with the court to satisfy a ten percent or straight cash bail, the money will be refunded on completion of the case. But when using a bonding agency, the agency posts that money out of its own funds, and the fee to the agency (which can be substantial) is not refundable.

Also, using a bonding agency exposes you to the risk that a bounty hunter may one day attempt to “arrest” you for non-appearance. The common law authorizes a suretor to arrest the absconding defendant without process and return the defendant to the jurisdiction without any court hearing or protection—what otherwise would be a gunpoint kidnapping and detention. Bounty hunters lack the professional training and accountability of the police, and there have been times when bounty hunters have harmed or even killed the defendants they were pursuing.

Constitutional issues

The Constitution prohibits excessive bail and requires due process.

Excessive bail shall not be required

The Eighth Amendment to the United States Constitution states, “Excessive bail shall not be required…”

Despite the language of the Eighth Amendment, preventive pre-trial detention without bail is allowed. For example, a state may allow preventive detention if the defendant is charged with a crime for which the maximum sentence is execution or life imprisonment. Also, a state may allow preventive detention if no condition or combination of conditions other than imprisonment will reasonably assure the defendant’s appearance or the community’s safety or the safety of a particular person.

Bail can be beyond defendant’s means

Even in situations in which preventive detention and the denial of bail are not justified, a bail is not considered excessive merely because it is in an amount that you cannot afford. What the Eighth Amendment dictates is that bail cannot be set at a figure higher than an amount reasonably calculated to:

  • Assure your presence in court; or
  • Achieve other purposes of bail, such as protection of the community.

Thus, the court could set bail at an amount that is beyond your means. However, bail set at an amount higher than necessary to assure your appearance might be unconstitutionally excessive, regardless of whether or not you can afford it.

Due process arguments

In limited circumstances, your criminal defense lawyer could argue that an unduly lengthy pre-trial detention violates your constitutional right to “due process” of the law, and therefore requires your release. The state cannot detain a defendant indefinitely, month after month for years, without giving the defendant a trial. In those rare cases when a detention is so excessively long as to violate due process, the defendant is entitled to be released.